Free Software Matters:
When Code Isn't Law

Most of my time is spent writing and teaching about law for the
Internet society, or proposing and helping to implement legal strategy
for the free software movement. As a Linux user, you know that free
software, because of the way it's made, achieves levels of quality
that proprietary software rarely meets, and delivers reliable
cutting-edge technology at a price every individual user and small
business can afford. But from where I sit, free software is also
central to the biggest legal and political issues that the global
Internet society will face in the next twenty-five years.

We often discuss ``the Internet'' as though it were either a thing or
a place, but we do better at grasping the legal and political issues
the net presents if we think of ``the Internet'' as the name of a
social condition: the fact that everyone living in the networked
portions of the world can now communicate with anyone else directly,
without intermediaries, reaching very large numbers of people at
almost no cost. A society in which everyone is connected to everyone
else behaves differently from any society that has ever existed
before; past ``principles'' of social and economic law, things that
seemed always true everywhere, aren't anymore.

Free software--like the Linux kernel, GNU Emacs, LaTeX, Apache, Perl,
and all the other tools you use all the time--exists because in this
pervasively interconnected society, non-traditional means of production
can be amazingly efficient. Large numbers of programmers can
collaborate easily on enormous projects without having to be locked
into a hierarchical organization. Everyone can participate in finding
and fixing bugs and everyone can readily incorporate all the fixes, so
the quality of free software can be much higher than that of programs
produced by a limited number of developers and testers inside a
commercial proprietary manufacturer.

At first glance, free software seems to pose a problem mostly for
commercial proprietary software firms. And it is a problem for
them: they're going to have to learn to compete against excellent
products that everyone can copy, use, improve and redistribute at no
cost. But there are more serious forms of confrontation ahead.

Instead of thinking of the net as a place called ``cyberspace,'' think
of it for a moment as a collection of pipes and switches. Information
flows through all the different kinds of pipes, and is modified or
sent to particular destinations by the switches. The switches
determine who gets what information, how privately or publicly, and
what--if anything--users downstream from the switch have to pay to
receive the information. For you, the most important switch of all is
the one closest to your eyeball and eardrum. It shows you the text
and video you ask for, plays your music, carries your voice calls and
video conferences, and so on.

But there are other people too who want to control the switches
nearest you. They want to be able to deliver music or movies, for
example, that you have to pay for each time you listen or watch.
Copyright law protects them already, by making it illegal for you to
copy music or movies and give those copies to other people. But in
the world of the net, where copies cost nothing and move everywhere
instantly, the distributors of proprietary media think that legal
protection is not enough. They want to be sure that your computer
can't make copies of the music they've just delivered you
over the net. In the phrase of Professor Larry Lessig of Harvard,
they want code to substitute for law.

In the world of proprietary software, the user doesn't control the
switch he himself owns: the software manufacturer does. If Microsoft
makes the Windows Media player so that there's no way to save
streaming audio on the hard drive, it's almost impossible for the user
to unmake that decision.

But free software is code that any user can change, and therefore it
can't be used to substitute for law. And because free software often
replaces proprietary software, it can act subversively, to undo
``laws'' made by proprietary programs. Free software browsers can
remove the ads from web pages, a free software DVD player can let you
fast-forward through commercials. Any free software media player
could be modified to save the music or video it is playing. ``Who
controls the switches?'' That's the most important legal and
political question in the Internet society. Free software says that,
as individuals, we do. So sometimes ``code is law'' and sometimes
code is freedom. Which makes for many complex legal issues, a few
already raised in the courts and many more that we'll see in the next
year or two, as free software finds itself at the center of conflict
over the politics of the Net. [In future issues of this magazine I'll
be writing more about these cases, and about why Free Software
Matters.]

*Eben Moglen is professor of law and legal
history at Columbia University Law School. He serves without fee as
General Counsel of the Free Software Foundation. You can read more of
his writing at moglen.law.columbia.edu